NYS Court of Appeals Issues Major Health Care Whistleblower Decision

As we reported on Jan. 8, 2008, the 2d Circuit certified to the NYS Court of Appeals two questions. The first involved waiver under NY Labor Law Sec. 740 and far more significantly who is a health care employee under NY Labor Law Section 741.

N.Y. Labor Law Sec. 741 is broader than the limited general whistleblower statute in New York, Labor Law Sec. 740. Section 741, for example protects an employee who "objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care." Significantly, however,  "employee" is defined as "any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration" (Labor Law § 741[1][a]).

The Court of Appeals draws a distinction between the coordination of health care services and the performance of health care services, reasoning:

We have observed that "[i]n construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning that involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning" (Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 583 [1998]), quoting Tomkins v Hunter, 149 NY 117, 122-23 [1896] [additional citation omitted]). Here, the "natural signification" of section 741(1)(a) is quite definite: to be subject to the special protections of section 741, an employee of a health care provider must "perform health care services," which means to actually supply health care services, not merely to coordinate with those who do.

Thus, a Director of International Programs who coordinated transportation and marketing of international patients, maintained a welcome center, collected data and communicated with patients did not supply services.

Once again, our Court of Appeals narrowly interprets our state's employment laws.

Mitchell H. Rubinstein